Wills & Succession: Lecture 1 DEATH DEATH - SUMMARY Proof o Fact o Inference evidence of possibility of death o Presumption wait

wait 7 years CL 7yr presumption of death Axon v Axon Order of death o Survivorship Presumption of survivorship CA1919 s 35 Re Plaister B must survive D for more than 30 days SA2006 s 35(1) Otherwise deemed to have died immediately before testator SA2006 s 107(1) Halbert v Mynar Cannot use both s35CA and 7 year rule to determine whether legatee survived testator. Burial DEATH FORMALITIES: A person who dies in NSW must have their death registered; s.36, Births Deaths and Marriages Act 1995.

(1) (2)
(3)

If a person dies in the State, the death must be registered under this Act.

If a court orders the registration of a death, the death must be registered under this Act. If a person dies: (a) in an aircraft during a flight to an airport in the State, or (b) on a ship during a voyage to a port in the State, the death may be registered under this Act. (4) If a person who is domiciled or ordinarily resident in the State dies outside the Commonwealth, or a person dies outside the Commonwealth leaving property in the State, the death may be registered under this Act. (5) However, the Registrar is not obliged to register a death under subsection (3) or (4) if the death is registered under a corresponding law. (6) If a child is stillborn, the child's death is not to be registered under this Part.

(7)
Notes

This section is subject to section 38.

1. The power to order registration of death may be exercised by courts of this State and also by courts of other States and the Commonwealth (see section 37). 2. i.e. the foetal death. A stillbirth is registered as a birth but not as a death.

A death cannot be registered without a certificate from either a medical practitioner (MP) under s.39, or the coroner under s.101 of the Coroners Act 2009; see s.38, Births Deaths and Marriages Act 1995. S39 certificate cannot be given unless the MP has seen the deceased within 6 months of death; otherwise the death must be reported to the coroner; s.39 of the Coroners Act 2009. All suspicious deaths must be reported to the coroner and are referred to as reportable deaths; s.35. Section 35 provides:
(1) This section applies to any person who has reasonable grounds to believe that a death or suspected death of another person: (a) is a reportable death or occurred in circumstances that would be examinable under Division 2 of Part 3.2, and (b) has not been reported in accordance with subsection (2). (2) A person to whom this section applies must report the death or suspected death concerned to a police officer, a coroner or an assistant coroner as soon as possible after becoming aware of the grounds referred to in subsection (1). Maximum penalty (subsection (2)): 10 penalty units.

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(3) A police officer to whom a death or suspected death is reported under this section is required to report the death or suspected death to a coroner or assistant coroner as soon as possible after the report is made. (4) An assistant coroner to whom a death or suspected death is reported under this section is required to report the death or suspected death to a coroner as soon as possible after the report is made. (5) A coroner to whom a death or suspected death is reported under this section is required to inform the State Coroner of the report as soon as practicable after the report is made.

A reportable death is defined in section 6 as:

(1) For the purposes of this Act, a persons death is a reportable death if the death occurs in any of the following circumstances: (a) the person died a violent or unnatural death, (b) the person died a sudden death the cause of which is unknown, (c) the person died under suspicious or unusual circumstances, (d) the person died in circumstances where the person had not been attended by a medical practitioner during the period of 6 months immediately before the persons death, (e) the person died in circumstances where the persons death was not the reasonably expected outcome of a health-related procedure carried out in relation to the person, (f) the person died while in or temporarily absent from a declared mental health facility within the meaning of the Mental Health Act 2007 and while the person was a resident at the facility for the purpose of receiving care, treatment or assistance. (2) A reference to a medical practitioner in subsection (1) includes a reference to a person authorised to practise as a medical practitioner under a law of another State or a Territory. (3) In this section: health-related procedure means a medical, surgical, dental or other health-related procedure (including the administration of an anaesthetic, sedative or other drug), but does not include any procedure of a kind prescribed by the regulations as being an excluded procedure.

Pursuant to s.21 a coroner has jurisdiction to hold an inquest if the coroner deems it appropriate;
(1) A coroner has jurisdiction to hold an inquest concerning the death or suspected death of a person if it appears to the coroner that: (a) the persons death is (or there is reasonable cause to suspect that the persons death is) a reportable death (see s.6 above), or (b) a medical practitioner has not given (or there is reasonable cause to suspect that a medical practitioner has not given) a certificate as to the cause of death. (2) The reference to a medical practitioner in subsection (1) (b) includes, if it appears to the coroner that the death or suspected death occurred at a place outside the State, a reference to a person entitled under the law in force in that place to issue a certificate as to the cause of death.

This jurisdiction does not depend on whether the death has in fact been reported; s.20. However pursuant to s.27 of the Coroners Act there are circumstances where an inquest must be held e.g. suspicious circs, foulplay.
(1) An inquest concerning the death or suspected death of a person is required to be held in any of the following circumstances: (a) if it appears to the coroner concerned that the person died or might have died as a result of homicide (not including suicide), (b) if the jurisdiction to hold the inquest arises under section 23, (c) if it appears to the coroner concerned that: (i) it has not been sufficiently disclosed whether the person has died, or (ii) the persons identity and the date and place of the persons death have not been sufficiently disclosed, (c) if it appears to the coroner concerned that the manner and cause of the persons death have not been sufficiently disclosed (unless the case is one in which an inquest has been suspended or continued under section 78). (2) An inquest is not required to be held under this section if it appears to the coroner concerned that an inquest or other official inquiry concerning the death or suspected death has been held, or is to be held, outside the State.

A body cannot be buried or cremated except in accordance with s.100 of the Coroners Act which provides:
(1) A person must not bury or cremate human remains, or place human remains in a mausoleum or other permanent resting place, or cause the remains to be so buried, cremated or placed, unless: (a) the person has been given, or has in his or her possession, an appropriate disposal authorisation for the disposal of the remains, or (b) the disposal of the remains is otherwise authorised by the regulations. Maximum penalty: 50 penalty units. (2) A person must not deliver or hand over human remains for anatomical or medical research, or remove human remains (other than cremated remains) from the State, or cause such remains to be so delivered, handed over or removed, unless: (a) an appropriate disposal authorisation for the disposal of the remains has been issued, or

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(b) the disposal of the remains is otherwise authorised by the regulations. Maximum penalty: 50 penalty units.

(3) An appropriate disposal authorisation is:

(a) in relation to the disposal of the remains of a deceased person (other than a stillborn child)any of the following documents: (i) a notice given by a medical practitioner for the purpose of section 39 of the Births, Deaths and Marriages Registration Act 1995 relating to the deceased person, (ii) an order made by a coroner under section 101 authorising the disposal of the remains, (iii) a certificate issued under s 51 of the Births, Deaths and Marriages Registration Act 1995 that relates to the deceased person, or (b) in relation to the disposal of the remains of a stillborn childany of the following documents: (i) a certificate or notice given by a medical practitioner for the purpose of section 12 (3) of the Births, Deaths and Marriages Registration Act 1995 relating to the stillborn child, (ii) an order made by a coroner under section 101 authorising the disposal of the remains.

Thus in order to bury or cremate the deceased the person arranging the burial must either possess a certificate issued by a medical practitioner under s 39 of the Births, Deaths and Marriages Registration Act or an order of a corner under s.101 of the Coroners Act or a certificate under s 51 of the Births, Deaths and Marriages Registration Act.

DEATH PRESUMPTIONS: Death is defined ftPo NSW law in s.33 of the Human Tissue Act 1983 (HTA83) as:
33. For the purposes of the law of New South Wales, a person has died when there has occurred:

(a) (b)

irreversible cessation of all function of the person's brain; or irreversible cessation of circulation of blood in the person's body.

NB: this definition applies only where there is a body. It applies for the purposes of all law in New South Wales and not just the Human Tissue Act. Consider the position of a brain dead person on life support? Death must at common law be proved as a question of fact either directly where there is a body or indirectly as a matter of implication from known circumstantial evidence. Onus on person wishing to prove an entitlement founded upon a person having survived another person to, at common law, prove that fact; Wing v Angrave (1860). So in Re Dolling [1956], it was held at 537 that, [b]efore a legatee is entitled to share in the estate of a testator he must show that he has survived the testator, and so must those who claim through the legatee.

Absence: Where there is no body, death can be presumed. Section 40A of the Probate and Administration Act 1898 allows probate to be granted upon a presumption of death. CL 7yr presumption of death Where a person is not heard from for a period of 7 years by those persons who would be expected to have had communication with that person then a court may presume that person dead; Axon v Axon (1937).

Onus on person denying validity of marriage to proof evidence that makes it void. Continuance of life principle weakens with time or with circumstances suggesting otherwise (pp 404).

This period may be less depending on the circumstances of disappearance; Re: Matthews [1898] such as the case of an elderly person who disappears. It does not matter that the person is a fugitive from justice or cuts themselves off from relatives, if the 7 years has expired and no one has heard of the whereabouts of the person then the court can apply the presumption; Grieve v Registrar General . But if the objective circumstances reveal a reason why such persons might not have heard from the missing person then the court may not apply the presumption.

Wills & Succession: Lecture 1 DEATH Cases based on the presumption of death must be distinguished from cases where the court is able to infer death in the absence of a body from the circumstances of disappearance; Re: Smith (1975), (aircraft disappearing over water). Once the presumption is made, if the deceased turns up, then probate / administration must be revoked for want of jurisdiction; s.40C and Ex parte Keegan (1907).

ORDER OF DEATH AND SURVIVORSHIP At common law the order of death had to be proved by evidence. Difficulties arose in cases of simultaneous deaths e.g. plane crash etc. Section 35, Conveyancing Act 1919 - Presumption of survivorship (statutory rule) Younger deemed to survive the elder.
In all cases where two or more persons have died under circumstances rendering it uncertain which of them survived, the deaths shall for all purposes affecting the title to any property be presumed to have taken place in order of seniority, and the younger be deemed to have survived the elder.

This section applies if the order of death cannot be established by evidence. It must be uncertain on the evidence as to in which order 2 or more persons died; Re Plaister; Perpetual Trustee Co v Crawshaw (1934). Relationship s.35 and the Presumption of Death: See Halbert v Mynar [1981].1

1. Actual time of death must be proved in order to show that a legatee has survived the testator; Re Dolling [1956]. 2. Section 35 turns on under circumstances rendering it uncertain which of them survived." i.e. known circs of death render the
order of deaths uncertain. With the 7 year presumption - circs of death are unknown. Therefore s.35 and the 7 year rule cannot be used together to determine if a legatee has survived the testator if s35CA cannot be used, must establish deaths by inference (pp666-7 per Waddell J),

3. Section 35 CA All that is required circumstances of each death be known these circumstances render it uncertain which
order the persons died; Hickman v Peacey [1945] AC 304 at 314-315. Survivorship Section 35, Succession Act 2006 Beneficiary who dies within 30days of the testators death is taken to have died immediately before testator and does not inherit estate. Applies only where the will was made after 1 March 2008. Section 107, Succession Act 2006 Where the deceased dies intestate, person must have survived deceased by 30 days in order to be able to inherit. Applies only where the deceased dies intestate on or after 1 March 2010. This Act does not alter the operation of s35CA but in some cases it removes the consequences of determining the precise order of death.

DEATH DISPOSAL OF THE BODY:

Couple John (b. 1914) & Emily (b. 1920). Daughter Blanka (b. 1945) & husband Mynar, married in 1971. 1972 father & daughter disappear. No reasons why. 1973 mother dies. Issue: Order of deaths.

Wills & Succession: Lecture 1 DEATH Ownership: A corpse cannot own property; Haynes Case (1614). Thus the coffin belongs to the person who acquired it for burial, usually the executor. There is no property in a corpse including any part of a corpse; Doodeward v Spence (1908).

1. Theft a corpse = trespass to the land in which it is buried.

2. A corpse becomes part of the land in which it is buried.

3. Some proprietary rights where a person performs work or skill on a corpse.

4. Possession of a corpse is only lawful for the purpose of immediate burial. special legislation is required authorising organ donation; HTA 1983 ss.23-24 and medical research; Anatomy Act 1977 ss.88A. Organ Donation:

5. CL: any interference with a corpse - even for dissection for medical purposes - is a criminal offence; R v Lynn (1788). Thus

Regenerative tissue may only be removed from an adult person with that person's consent and then only for the purposes of transplantation or for other therapeutic, medical or scientific purposes; section 7 of the Human Tissue Act 1983. Non-regenerative tissue may only be removed from an adult person with that person's consent and then only for the purposes of transplantation; section 8 of the Human Tissue Act 1983.

Tissue includes blood, ova and semen, and foetal tissue; section 4 (2A) of the Human Tissue Act 1983.

A person over 16 years may consent in writing to the removal of blood from their body for a therapeutic purpose or for the transfusion in to a person other than themselves; section 19 of the Human Tissue Act 1983. Nothing in the HTA authorises the removal of semen for the purposes of the artificial insemination of a woman from a COMATOSE person where that person has not previously consented or authorised another to consent on his behalf; MAW v Western Sydney Area Health Service (2000) 49 NSWLR 231 at 244. But where a person is DECEASED, then this may be possible provided the requirements of section 23(3) of the Human Tissue Act as amended by Human Tissue and Anatomy Legislation Amendment Act 2003 are satisfied as set out below.

The court cannot use the parens patriae jurisdiction that it has over disabled persons to authorise the removal of semen for the purposes of the artificial insemination of a woman even if the spouse of the DISABLED person MAW v Western Sydney Area Health Service (2000) 49 NSWLR 231 at 242.

Section 23 HTA. Allows a designated officer of a hospital to permit the removal of tissue from the body of a deceased person at the hospital if satisfied that the deceased consented in writing during his or her lifetime; s.23(1). Where there is no consent, the next of kin may consent if the deceased has not during their lifetime expressed objection; section 23 (3). See section 24 of the Human Tissue Act 1983 where the body is not at a hospital.

Removal of tissue pursuant s.23 is only ftPo transplantation to the body of a living person or for some therapeutic, medical or scientific purpose. Removal of semen for possible later use may be regarded as a medical purpose; Jocelyn Edwards; Re the estate of the late Mark Edwards [2011]. Also Y v Austin Health (2005).

Transplantation includes the artificial insemination of semen; section 4 (3) and artificial insemination refers to fertilization outside of the womb for the purpose of implanting in the woman or another woman; section 4 (1). This includes IVF treatments and surrogacy. Where any form of dissection or preservation has been applied to a tissue sample then it is capable of being regarded as property; AB v Leeds Teaching Hospital NHS Trust [2004].

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In Jocelyn Edwards; Re the estate of the late Mark Edwards [2011]. Extraction of semen by medical practitioners at the request of the widow constituted the performance of work or skill upon a part of the body such that it was capable of forming property that enabled the widow to assert a right to possession. Burial Executor: Executor right to the custody and possession for the purpose of burial; Williams v Williams (1882). Thus an action will lie at the suit of the executor to recover the body but only for this purpose. See also Dobson v North Tyneside Health Authority [1997] 1 WLR 596 at 600. If a deceased leaves written instructions that body is not to be cremated, - binding on the executor; Reg 34, Public Health (Disposal of Bodies) Regulation 2002:
A person must not cremate the body of a dead person if informed that the latter has left a written direction that his or her body was not to be cremated or that it was to be disposed of by some other means. Maximum penalty: 10 penalty units.

Approved burial grounds: The Public Health (Disposal of Bodies) Regulation 2002 makes numerous provisions with respect to the burial, cremation and handling of corpses. The most relevant of these is Reg 22:
(1) A person must not place a body in any grave or vault unless that grave or vault is located: (a) in a public cemetery, or (b) in a private cemetery or other place approved for that purpose by a local authority, or (c) on private land, where the area of landholding is 5 hectares or more and the location has been approved for that purpose by a local authority. (2) A person must not bury a body in or on any land if to do so would make likely the contamination of a drinking water supply or a domestic water supply. Maximum penalty: 10 penalty units.

Burial No Executor: The right to bury a child blood parents over foster parents or carers; Warner v Levitt. A de facto spouse higher right to burial than other relatives of the deceased; Burnes v Richard; Brown v Tulloch. Smith v Tamworth City Council (1997): (Young J)

1. The executor has the right to bury. 2. The testator cannot dictate what will happen to body. 3. The executor should consult with the relatives but is not bound to do so. 4. If no executor then the person with the highest right to administration has the right to bury. 5. The surviving spouse / de facto is preferred to the children as administrator. 6. In the case of a child where the parents both have an equal right to bury but are in dispute, the court may favour the parent with
the closest bond with the child; AB v CD [2007]; Joseph v Dunn [2007].

7. If no competent person householder of dwelling in which deceased dies.

8. Cremation and burial are equivalent.

9. Person who spends money on the burial of another restitutionary right to recover from deceaseds estate. 10. A right of burial irrevocable licence over the body in the ground. 6

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11. A cemetery authority can make reasonable by-laws for the maintenance and appearance of a headstone; Crown Lands
(General Reserves) By Law 2006 (NSW), clause 25.

12. Subject to the by-laws the holder of the right to bury has power to decide the appearance and headstone of the grave. 13. The reasonable cost of a reasonable headstone is recoverable from the deceaseds estate. 14. The holder of the right to bury cannot exclude friends and relatives from expressing their affection for the deceased in an
appropriate manner such as placing flowers on the grave etc.

15. The right to control the grave passes to the legal personal representative of the deceased and not the legal personal
representative of the holder of the right to bury. An unused burial plot can be reacquired by a cemetery authority after 60 years; Crown Lands (General Reserves) By Law 2006 (NSW) clauses 34 and 35.

Executor/administrator who orders the funeral is entitled to be reimbursed the reasonable costs of the funeral determined according to the "degree and quality", "rank and circumstances" of the deceased; Mullick (1829). If a third person ordered the funeral entitled to be reimbursed from the executor or administrator providing that person is holding assets of the deceased. If extravagant funeral ordered personally liable to the undertaker can only recover reasonable costs. Anomalous cases permitting trusts for the maintenance of graves provided that they can be limited to 21 years; see Pedulla v Nasti (1990).